Marquette Law Review Volume 26 Article 2 Issue 2 February 1942 Some Leading Wisconsin Evidentiary Rules and Suggestions for Their mprI ovement William E. Taay Sydney R. Mertz Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation William E. Taay and Sydney R. Mertz, Some Leading Wisconsin Evidentiary Rules and Suggestions for Their Improvement, 26 Marq. L. Rev. 65 (1942). Available at: http://scholarship.law.marquette.edu/mulr/vol26/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. SOME LEADING WISCONSIN EVI- DENTIARY RULES AND SUG- GESTIONS FOR THEIR IMPROVEMENT WILLIAm E. TAAY* AND SYDNEY R. MERTz4 IN RECENT years, attention has been drawn more and more to the law of evidence by outstanding scholars in the field, who declare that no branch of the law is in more urgent need of modernization than the evidentiary rules that guide the conduct of a jury trial. In the light of the abundant criticism that has been and is being directed at the law of evidence, it is submitted that at least some of the leading evidentiary rules governing jury trials in Wisconsin should be critically examined in an effort to determine where improvements can be made.1 With the above object in mind, it is not the purpose of this article to invade the province of the numerous works on the subject. Rather, the purpose is to examine present rules, offer constructive criticism in their application, and to discuss certain proposals, including those by leading authorities, for a much needed change. TIE TREND Tow~AR IMPROVEMENT OF THE RULES OF EVIDENCE The extensive body of doctrine known as the law of evidence was designed to filter the testimony of witnesses, in order to aid the jury- men inexperienced in weighing the reliability of testimony. Since the judge is far better educated and more experienced than the jurors in the hearing of evidence, it is supposed that he can assist the jury in reaching a more nearly correct and just verdict by preventing the jury from hearing that testimony thought likely to mislead or prejudice ordinary laymen untrained in the law. With such aim in mind, the rules of evidence have been developed in the court and subsequently applied with results sometimes astonish- ing to one untrained in trial technique. Thus today the examining law- yer asks questions of the witness in rapid succession, the opposing lawyer objects, the court swiftly sustains or overrules the objection, * Member of the Milwaukee bar. t Senior in the Marquette University Law School. 3-A general professional interest in this subject has been aroused by the pro- posed. Code of Evidence of the American Law Institute. The Code was dis- cussed at the 1941 Fall Institute of the State Bar Association of" Wisconsin, and its effect on 'the Wisconsin decisions in various fields of evidence was considered. See 14 BuLLrET OF THE STATE BAR AssocIATIoN OF WISCONSIN 195 (1941). THE MARQUETTE LAW REVIEW [Vol. 26 and the examining lawyer, unperturbed, proceeds to direct a rephrased or new question to the witness. While opposing counsel attempts to stop testimony on the spur of the moment by objections according to the rules of evidence that must be invoked and applied instantly, the jury gradually hears the story of the witness drawn out bit by bit in an atmosphere of verbal clash and conflict. It seems that not infre- quently technical objects, sustained by the court, succeed in keeping from the ears of the jury the most vital portions of the offered testi- mony. As noted in the expanded case digests and the many text works on the subject of evidence, the passage of time has multiplied the rules of evidence and refined them with exceptions and fine distinctions. To use all the rules of evidence readily, to retain them in memory, and to keep abreast with their numerous changes borders on the realm of absolute impossibility. In most instances, therefore, closely reasoned objections upon a point of evidence are not heard. They have given way to the endless repetition of a few stock objections including the familiar blanket objection, "incompetent, irrelevant and immaterial." One of the chief arguments for the use of administrative bodies in the field of workmen's compensation was the desirability of escap- ing the multitudinous technical rules of evidence which served to delay the awarding of damages to an injured or for a killed worker and his family by affording technical grounds for appeal and reversal. Predicated upon the proposition that the purpose of a judicial trial is the elicitation and the determination of the truth, the question is raised whether the technical rules of evidence originally designed as a "shield for justice" have not in many instances become a "sword for injustice." The problem appears to be: How can the law of evidence be improved? Which are the useless rules that must be abolished? Which are the rules that must be repaired? How can the rules of evidence be redesigned as "shields for justice"? The frequent criticism directed at the evidentiary rules by outstand- ing scholars such as Wigmore2 and Morgan3 has attracted and influ- enced legislators, lawyers and the courts. Today the bench, the bar and the legislatures recognize the need for modernizing the rules of evi- dence. The new attitude evident in the legal profession portends major changes in the law of evidence. Much of the discussion and criticism has centered around the fol- lowing rules of evidence: 1) incompetency of survivor's testimony against the representative of a deceased party, 2) dying declarations, 2 1 WIGiOR, EvIDENCE (2d ed. 1923) sec. 8a. 3 Morgan and Maguire, Looking Backward and Forward at Evidence, 50 HARV. L. Rzv. 909 (1937); Morgan, The Code of Evidence Proposed by the Ameri- can Law Institute, 27 A.B.A. JOURNAL 539, 587, 694, 742 (1941). 1942] LEADING WISCONSIN EVIDENTIARY RULES 67 3) opinion rule, 4) physician-patient privilege, 5) expert testimony, 6) judicial notice, 7) use of scientific evidence and the privilege against self-incrimination, and 8) business records. This article will discuss these rules as applied in Wisconsin, and will consider changes which may be made in them. 1. SuRvivoR's TESTIMONY AGAINST REPRESENTATIVE OF DECEASED OR INSANE PARTY OR AGENT IN WISCONSIN. Although the rule disqualifying interested persons as witnesses was abolished long ago, 4 there still remains in Wisconsin, as in the majority of states, a relic of the former rule, namely, the prohibition against the survivor of a transaction or communication with a deceased or insane person or agent giving testimony against the representative or principal of such deceased or insane person or agent.5 Under the practical opera- tion of the rule in Wisconsin, where one man's lips are sealed by death, the survivor's lips must be sealed by the law. In the name of solicitude for the dead, the rule permits a claim of a plaintiff to be defeated, perhaps, because of the failure of a judicial hearing upon all the possible evidence. The Wisconsin court has attempted to construe it's dead man statute so as to exclude from its operation as many classes of wit- 4 See Wis. STAT. (1941) sec. 325.13. 5Wis. STAT. (1941) secs. 325.16, 325.17. These sections read as follows: "325.16. Transactions with deceased or insane persons. No party or per- son in his own behalf or interest, and no person from, through or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication by him personally with a de- ceased or insane person in any civil action or proceeding, in which the opposite party derives his title or sustains his liability to the cause of action from,,through or under such deceased or insane person, or in any action or proceeding in which such insane person is a party prosecuting or defending by guardian, unless such opposite party shall first, in his own behalf, introduce testimony of himself or some other person concerning such transaction or communication, and then only in respect to such transaction or communication of which testimony is so given or in respect to matters to which such testi- mony relates. And no stockholder, officer or trustee of a corporation in its behalf or interest, and no stockholder, officer or trustee of a corporation from, through or under whom a party derives his or its interest or title, shall be so examined, except as aforesaid. "325.17. Transactions with a deceased agent. No party, and no person from, through or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication by him personally with an agent of the adverse party or an agent of the person from, through or under whom such adverse party derives his interest or title, when such agent is dead or insane, or otherwise legally incompetent as a witness unless the opposite party shall first be examined or examine some other wit- ness in his behalf in respect to some transaction or communication between such agent and such other party or persons; or unless the testimony of such agent, at any time taken, be first read or given in evidence by the opposite party; and then, in either case respectively, only in respect to such transaction or communication of which testimony is so given or to the matters to which such testimony relates." THE MARQUETTE LAW REVIEW [Vol.